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Court of AppealAllowedCivil Application E176 of 2021· [2022] KECA 486 (KLR)

Nyakundi (Suing as Attorney of Christopher Mbaka Nyakundi) v Omanua

Court of Appeal
25 March 2022
MNMumbi Ngugi
1,426 words in judgment
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The bottom line

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Kenya's Court of Appeal granted an extension of time to appeal because the delay was caused by the court registry, not the appellant.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (Mumbi Ngugi JA) on an unopposed Notice of Motion dated 15th December 2021 brought under Rule 4 of the Court of Appeal Rules and Article 159 of the Constitution, seeking extension of time to file and serve a Notice of Appeal and Record of Appeal out of time against the judgment of the Environment and Land Court at Kisii (J.O. Onyango J) delivered on 27th October 2021 in Kisii ELC Case No. 369 of 2015. The applicant, suing as attorney of Christopher Mbaka Nyakundi, explained that a Notice of Appeal dated 29th October 2021 was lodged, stamped and paid for on 2nd November 2021, but the Deputy Registrar could not sign it because the ELC court file could not be traced; the file nonetheless surfaced for a taxation notice dated 1st December 2021, and the signed but undated Notice of Appeal was only returned on 15th December 2021. The respondent filed no response. Applying the settled Leo Sila Mutiso criteria, the court held that the applicant took all necessary steps timeously and that the delay was occasioned by the ELC registry's failure to make the court file available, not by the applicant. The application was found merited and extension of time was granted as prayed, with costs of the application to be in the appeal. The intended appeal challenges the ELC's findings that the claim was time barred and that the court lacked jurisdiction to order reopening of a blocked access road.

Key legal issues

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01

Whether the delay in lodging the Notice of Appeal should be excused under Rule 4

Holding

Yes. The applicant acted timeously; the delay was caused by the ELC registry's failure to make the court file available, and the application was merited.

Reasoning

The court applied the Leo Sila Mutiso criteria. The Notice of Appeal was dated 29th October 2021, lodged, stamped and paid for on 2nd November 2021, but could not be signed by the Deputy Registrar because the court file could not be traced. The file was nonetheless available for taxation of costs. Since the applicant took all necessary steps promptly and the delay was registry-caused, the discretion under Rule 4 was exercised in his favour.

p. 3

Legal principles established

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  • In exercising discretion under Rule 4 to extend time, the court considers the length of the delay, reasons for the delay, chances of the appeal succeeding, and prejudice to the respondent.
  • Delay occasioned by the court registry, not the applicant, is not attributable to the applicant and does not defeat an extension of time application.

Court orders

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  1. 1.Extension of time granted to file and serve the Notice of Appeal and Record of Appeal out of time against the ELC judgment dated 27th October 2021
  2. 2.Costs of the application to be in the appeal (prayed and granted as prayed)

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Court of Appeal RulesRule 4

Cases cited (1)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997

    Criteria for extension of time: length of delay, reasons, chances of appeal succeeding, prejudice to respondent.

On appeal from
Environment and Land Court
Kisii ELC Case No. 369 of 2015
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyakundi (Suing as Attorney of Christopher Mbaka Nyakundi) v Omanua", Case Analysis (2022). Civil Application E176 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/486/eng@2022-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.